The contract in this case was to furnish, an engine, boilers, &c., to be of the best materials and subject to the approval of the engineer, delivered on board of a boat, &c. The plaintiff was' to guaranty that they should be in perfect running order. Ho time for the completion of the work was stated iii the contract.
The engine &c. was delivered about the 1st of March, 1866, and the defendants gave the notes in suit in payment, one dated 1st March, 1866, and one dated 10th April, 1866. About the 25th of April, 1866, on attempting to use the engine, one of the flues collapsed, so as to prevent the further use of it. The defendants applied to the plaintiff, who promised to repair the flues, putting in new ones, which repairs were completed in June following, when the same 'were used by the defendants.
The referee found that the engine was approved by the engineer, but the boilers were not passed upon, by him; but that they were approved by him after the repairs, and were without fault; and gave judgment for the ‘ plaintiff for the amount due on the-notes.
Some of the findings of the referee upon the facts are not sustained by the evidence, and if the question in this case was whether the defendants, were bound tó accept the engine when tendered, I should be of the opinion that the report could not be sustained.
But it seems to me that this judgment must be affirmed upon other grounds.
There was no time stated for completing the contract, When the engine was delivered, it is conceded- to have been within a reasonable time, which is all that the contract required. When so delivered, it was the duty of the defendants to have had it inspected and passed upon by the engineer. ' If it was not approved of by them it should not have been accepted. If it be said that its sufficiency could not be determined until after trial, when the flue *323collapsed and the defect was discovered, the defendants should then have notified the plaintiff of their determination not to accept it. Instead of doing so, they permitted him to make alterations, and when altered, they accepted it, and according to the findings of the referee, their engineer approved of it, and they continued to use it, after-wards.
Under the evidence and the finding of the referee, we must' come to the conclusion that after the flues were altered and new ones substituted, the engine and boilers were approved and accepted. The only question then would be whether, for the delay caused by the substitution of new flues, the defendants could recover damages.
It is said by Pratt, J., in The Ilion Bank v. Carver, (31 Barb. 236:) “ In executory contracts, if a fraud has been perpetrated against a party, and he goes on and performs the contract, on his own part, he will be deemed to have waived all objections which he might have made on account thereof. In such a case, after having performed without objection, he can neither repudiate nor sustain an action for damages.”
So in Smith v. Brady, (17 N. Y. Rep. 187,) Comstock, J., says: “A person may accept a benefit under a contract of which the conditions precedent have not been performed by the other party; and he may do this in such circumstances that a new obligation to pay for the benefit will arise.”
In Vanderbilt v. The Eagle Iron Works, (25 Wend. 665,) there was an engine to be constructed, and when put on board the steamer was deficient in some respects from the contract; and the court held that the acceptance of the engine on board of the boat, and continued use and enjoyment, was to be deemed a waiver of the condition before payment of the money, and that all that could be required was a supply of the deficient articles.
Here the defect was remedied by the maker with the *324assent of the purchaser, and his continued use of the engine since is an acceptance of the same, and a waiver of any claim on account of the previous defect.
[First Department, General Term, June 6, 1870.Judgment affirmed.
Ingraham, P. J., and Gardozo and Geo. G. Barnard, Justices.]